Mʏᴇʀs & Cᴏᴍᴘᴀɴʏ
Helping the Jury Calculate Damages: Stories and Equations
I like equations. They're beautiful and exact. But they don't capture everything.
They're made for things like economic damages where past and future medical expenses and wage loss are added up (and sometimes reduced to present value).
But they're not a stand-alone solution for non-economic damages. They need to be paired with stories.
We all have the equivalent of two brains. One is the “number brain.” The other is the “story brain."
We use the number brain and the story brain to process different types of information.
The number brain decides whether it's a better deal to buy a gallon of windshield solution for $14 or two 32-fluid-ounce containers for $7.59. An answer is either right or wrong. There isn't room for nuance.
The story brain is used to understand things like culture, aspirations, challenges and solutions. Unlike the rigid number brain, the story brain uses a "more likely than not" standard to decide between alternatives. That standard just happens to align with the burden of proof in personal injury cases.
So the story brain is our audience when it comes to understanding why non-economic damages should be awarded.
But what story should be told to the story brain?
We know that after a bad injury there are a lot of stories that can be told from different perspectives.
Making day-in-the-life videos are pretty common in cases where clients have lost a leg or have to use a wheelchair.
But I've heard some attorneys explain:
Day-in-the life video, "problems with my injury and life" would also not be the story I’d be looking to tell. It’s not inspiring, but saddening. Sad jurors are not going to help much.
That's unorthodox by current standards. But it may be right.
I like the idea of the story acting like a catalyst rather than just making jurors sad.
Here are some boxes that should be checked by the story:
The story has to identify what "wrong" the jurors are being asked to “right.”
The story has to show that the plaintiff is deserving of having them help.
The story has to explain why money will help.
The story provides the jury with meaning and motivation. But that's only half the battle when it comes to non-economic damages. So we turn back to equations.

Equations give jurors permission and structure for an award. They reduce the psychological discomfort jurors can feel about choosing a number--particularly a large number--on their own.
Sometimes we come up with constructs like this:
Economic damages are what you can see and count. Non-economic damages are what you feel. Think about using a ratio between economic damages and non-economic damages like 1:9. For each $1 in economic damages you should award $9 in non-economic damages.
That's easy to calculate and gives us something to talk about. I've definitely used it in cases. And it works well when economic damages are substantial.
Another formula we use is:
Reasonable value per day × days affected = value of the loss
Equations can help rationalize a number. Especially a big number. And starting with something like the reasonable value per day is not as staggering as trying to get your head around the entire loss.
Distilling this down in the context of non-economic damages:
Story establishes the loss. It shows who the plaintiff was, what happened, and what life looks like now.
Evidence establishes permanence and frequency. How often? How severe? How long? What functions have actually been lost?
Equation provides the measuring device. It gives jurors a transparent method for converting those facts into damages.
The total comes last. The jury gets to decide the right ratio or how much, e.g., per day is necessary to compensate the loss. Then it can do the math to reach the total verdict amount. I used to think it was important to take the jury through the math. My thinking has changed. It's better to let the jury do its own math and make the conclusion its own rather than something it's being told to write on the verdict form.
